Free Exercise
of Religion: Rise of the Compelling State Interest TestThe issue: When may the
government enforce a law that burdens an individual's ability
to
exercise
his or her religious beliefs?

Introduction

Supreme Court
interpretation
of the Free Exercise Clause has come full circle. From its narrow
reading of the clause in 1878 in Reynolds,
to its much broader reading
of the clause in the Warren and Burger Court years, the Court returned
to its narrow interpretation in the controversial 1990 case of Employment
Division of Oregon v Smith. The story of this circular
migration
is an interesting one, and may provide lessons for other areas of
constitutional
interpretation. This page describes the first half of the story:
the rise of the compelling state interest test for evaluating
government actions that substantially burden religiously motivated
conduct.

The Supreme
Court's first
encounter with a Free Exercise Clause claim came when a Mormon
polygamist
in the Utah Territory challenged his conviction under a federal
anti-polygamy
law. The Supreme Court rejected the appellant's claim that his
religious
beliefs necessitated, and therefore excused, his violation of federal
law.
The Court read the Free Exercise Clause as protecting religious beliefs,
not religious practices that run counter to neutrally enforced
criminal
laws.

Adele Sherbert, the Seventh Day Adventist who
brought
a successful free exercise suit against South Carolina for
denying
her unemployment benefits after she refused to work on Saturdays.

By the Warren
Court years
of the 1960s, the Court had adopted a much more expansive view of the
Free
Exercise Clause, reading it to compel governmental accomodation of
religiously-motivated
conduct in the absence of a compelling state interest and the use of
means
that least burdened religious practices. Applying this strict
scutiny
to laws that significantly burdened religious exercise, the Court found
unconstitutional South Carolina's law denying unemployment benefits to
a Seventh Day Adventist who turned down a job opportunity that included
Saturday work (Sherbert).

The Burger
Court continued
to apply this test, using it in 1972 to find unconstitutional (as
applied
to Amish families) Wisconsin's law mandating attendance in schools
until
age 17 (Yoder). The Court found strong evidence for "the
claim that enforcement of the State's requirement of compulsory formal
education after the eighth grade would gravely endanger if not destroy
the free exercise of respondents' religious beliefs."

State and
lower federal courts, of course,
applied strict scrutiny to enjoin a variety of criminal laws in the
1970s
and 80s. For example, in 1979 in Frank v Alaska, the
Alaska
Supreme Court held that the state could not enforce its hunting laws
against
Athabascans who were religiously-motivated to hunt moose out of
season--moose
being a key ingredient in a religiously proper funeral potlatch.

By the
mid-80s, the Supreme
Court, while still using heightened scutiny, began to take a more
skeptical
view of Free Exercise claims. The close division of the Court on
these claims was revealed in its 1985 affirmance (by an equally divided
Court, Justice Powell not participating) of an Eighth Circuit
decision
enjoining Nebraska from enforcing a state law requiring photo
identification
on driver's licenses against a Nebraska motorist who believed that such
pictures violated the Second Commandment's warning against worshipping
graven images (Jensen v Quaring).

The next year,
the tide
began turning against Free Exercise claimants as the story continues:

"We don't want our
children involved in worldly things. In the public schools they
have physical education, science, television, things like
that--temptations for a different world. I don't want to condemn
anybody, but we want to hold to what we've got. We want to hold
our religion. That's what we're working for."-- Jonas Yoder

Centrality and Sincerity of the Burdened
Religious Belief

For a free exercise claim to
have any chance of success, two things must first be established.
First, it must be shown that the religious belief allegedly burdened by
the government is central
to one's religious beliefs. (This issue was debated by justices
in Frank v Alaska, above,
where the majority concluded that having fresh moose meat for a funeral
potlatch was central to Athabascan religious practice, while a
dissenting justice disagreed.) Second, it must be shown that the
religious belief that is allegedly burdened is sincerely held.
Once a good faith belief is established, the court's inquiry should
end: there should be no attempt to determine whether the belief is
true. (Ballard v United States).
Note that in Ballard, Justice
Jackson in dissent would not even have allowed judicial inquiry into
whether the belief was sincerely held: "I would be done with this
business of judicially examining other people's faiths."

Questions

1. Do you agree that
the text
of the Free Exercise Clause suggests that it protects
religiously-motivated
conduct as well as beliefs?
2. Is there any serious argument to be made that the people have an
unlimited right to do anything that their religous beliefs compel them
to do? If you were a member of a religion that believed the gods
demanded that a virgin be thrown off a cliff every week, could you
possibly argue that the Free Exercise Clause protects you against a
charge of murder?
3. Should Sherbert be entitled to unemployment benefits if her
religious beliefs required her to turn down any job that required her
to work on Tuesdays and Thursdays?4. Yoder
holds that
the Amish are exempt from state compulsory education laws because
public
education beyond a certain age threatens the religious values of the
Amish.
Does this case suggest that Christian Fundamentalists have a free
exercise
right to be exempted from, say, biology classes in which evolution is
taught
or requirements in a literature course that they read
religiously-objectionable
works?
5. Do the Frank and Jensen decisions suggest problems
with the compelling state interest test? Do you think either or
both of those cases were correctly decided? What about the
argument that granting special treatment to those with a specific
religious belief constitutes an establishment of religion?